Concorde International Trading S.A. International Credit and Investment Company Overseas Ltd ((in Liquidation)) Finance and International Ltd; Concorde International Trading S.A. Pharoah Holdings Ltd International Credit Investment Company Overseas Ltd ((in Liquidation)) Finance & Investment International Ltd

JurisdictionBahamas
CourtCourt of Appeal
JudgeCAREY J.A.
Judgment Date16 July 1999
Neutral CitationBS 1999 CA 32
Date16 July 1999
Docket NumberCivil Appeal No. 1 of 1998 and No. 23 of 1999

Court of Appeal

Gonsalves-Sabola, P., Carey, J.A., Hall, J.A.

Civil Appeal No. 1 of 1998 and No. 23 of 1999

Concorde International Trading S.A.
and
International Credit And Investment Company Overseas Limited (In Liquidation) Finance And International Ltd.; Concorde International Trading S.A.
and
Pharoah Holdings Ltd. International Credit Investment Company Overseas Ltd. (In Liquidation) Finance & Investment International Limited

Mr. Phillip Dunkley for the appellants (ICIC & FIIL).

Mr. Michael Scott for the respondents (CITSA).

Mr. Michael Barnett for the receiver.

Practice and procedure - Appeals — Power of Court of Appeal in relation to appeals from Privy Council — Appellant appealed against (i) the direction of the judge to the receiver of Pharoah Holdings Limited not to proceed with an appeal in the Cayman Islands involving International Credit and Investments Co. Overseas Ltd. (in liquidation) ICIC who obtained judgment there against Pharoah Holdings Ltd. in a sum in excess of $2B and for leave to appeal this order (ii) refusal of leave to appeal to the Privy Council and continuation of receivership until such leave granted — Rule 35(5) of the Court of Appeal Rules.

Held: No liability attached to the Concorde International Trading S.A. though CITSA had been found liable in respect of some heads of loss and damage. No damages had been assessed against the company and the company therefore had no right of appeal. There were exceptional circumstances that justified the grant of a stay. The receivership would be continued. Application for leave to appeal refused.

CAREY J.A.
1

There were two applications before us, the first in time being an application by Concorde International Trading SA (CITSA) for leave to appeal an order of Thomas A. E. Evans, Esq., QC sitting as an acting justice of the Supreme Court whereby he directed George Clifford Culmer, the Receiver and Manager of Pharaoh Holdings Ltd., not to proceed with an appeal commenced in the Court of Appeal of The Cayman Islands. The second application was one referred to the Full Court by a single judge who had granted leave to appeal to the Privy Council on the substantive application before him but had taken this course in relation to the ancillary application which sought the continuance of the receivership until the decision of Her Majesty in Council. He acted pursuant to Rule 35(2) of the Court of Appeal Rules.

2

We propose to deal with them in turn. As to the first, the Receiver had sought the court's directions to pursue an appeal in the Cayman Islands involving International Credit & Investments Co (Overseas) Ltd. (in liquidation) (ICIC) who had obtained a judgment there against Pharaoh Holdings Ltd. it a sum finally assessed by the Court of Appeal in excess of $2 B. The judge directed that the Receiver should not proceed with that appeal. The Receiver was content. He has, not surprisingly therefore, taken no further action in the matter. But CITSA against whom no liability attaches, is of opinion that an appeal should be pursued.

3

Mr. Dunkley challenged this application for leave to appeal made by CITSA against whom, it must be emphasized, there is no judgment in the Cayman Court. The judgment, he points out, is against Pharaoh Holdings Ltd. and Ghaith Pharaon. He says that CITSA has and can have no interest in the matter. He acknowledges that CITSA was found liable in respect of some heads of loss and damage but no damages have been assessed thereunder. In the result, he argues, CITSA has no right of appeal.

4

For CITSA, Mr. Scott submitted, in effect, that CITSA has locus standi in these proceedings because the assets of CITSA are or would be affected by the judgment. It must be said at once that there really however, was no evidence on this point before us, a fact which learned counsel was quite unable to deny. In the absence of such material, a legitimate foundation for an application to intervene on the part of CITSA does not, in my judgment, exist. The question whether an applicant not party to litigation in a lower court may intervene was considered in Re R.E. Whitehead, Ex, p. The Water Street Pawnbrokery, Ltd. (1968) 11 W.I.R. 453. Persaud, J.A. sitting in the Court of Appeal of Guyana held that whether or not a person was a party to the original litigation, if he is affected by an order of court and if he is aggrieved thereby, he should be allowed to approach Her Majesty in Council praying for relief. He relied on Maha-Rajah Ishuree Persad Narain Sing v. Lai Chutterput Sing 18 E.R. 435: (1842) 3 Moo. Ind App. 100. It is plain that CITSA is not a respondent in the appeal proceedings and must therefore be considered as an intervenor. In the absence of evidence of prejudice, the submissions of Mr. Dunkley are right and suffice to dispose of this application.

5

With respect to the other application to continue the receivership of Mr. Culmer consequent on the grant of leave to appeal to Her Majesty in Council, Mr. Scott in the first instance, contended that the application was one to stay execution which was governed by section 6 of The Bahama Islands (Procedure in Appeals to Privy Council) Order 1964 (the Order) which thereby ordained as follows:

“…where the judgment appealed from requires the appellant to pay money or do any act, the court shall have power, when granting leave to appeal, either to direct that the said judgment shall be carried into execution or that the execution thereof shall be suspended pending the appeal…”

6

It was plain, Mr. Scott argued, that this provision did not relate to the circumstances in this case as the instant judgment neither required the appellant to “pay money nor to do any act”. Mr. Dunkley faced with this stark and unequivocal rule, gladly clutched a lifeline offered him by the court, viz. section 5(b) of the Order. It enacts -

“…A single judge of the court shall have power and jurisdiction -

  • (a) to hear and determine any application to the court for leave to appeal in any case where under any provision of law an appeal lies as of right from a decision of the court;

  • (b) generally in respect of any appeal pending before Her Majesty in Council, to make such order and to give such other directions as he shall consider the interests of justice or circumstances of the case require…”

7

He had sought to advance the view that the court as a superior court of unlimited jurisdiction, had an inherent jurisdiction to do right in the interest of...

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